STATE JURISDICTION UNDER INTERNATIONAL LAW

1. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
STATE JURISDICTION
1) NATURE OF JURISDICTION
a. Jurisdiction(bidang kuasa) is an aspect of State sovereignty (Kedaulatan). It
includes both the power to prescribe (menetapkan)rules (prescriptive jurisdiction)
and the power to enforce them (enforcement jurisdiction).
2) TYPES OF JURISDICTION
Exclusive and concurrent
jurisdiction
Criminal and civil jurisdiction
Exclusive: Only one state has
jurisdiction.
Concurrent: two or more states can
claim jurisdiction.
Criminal: the main concern of Public
International Law
Civil: Private international law or conflicts
of law
3) GENERAL PRINCIPLES ON CRIMINAL JURISDICTION
a. five general principles’ on which criminal jurisdiction is claimed by states
i. TERRITORIAL PRINCIPLE
1. determining jurisdiction by reference to the place where the
offence was committed
2. A State can exercise jurisdiction over persons, property, acts or
events occurring, within its territory.
3. Extension of the territorial principle
a. It is proposed that a State be allowed territorial jurisdiction
when a crime is committed ‘in whole or in part’ within its
territory.
b. A crime is committed ‘in part’ within the territory when
any essential constituent element is consummated there.
c. It means that due to the modern development of inter-state
transactions, territorial principle should be extended to
include:
i. Subjective territorial principle- a State has
jurisdiction over offences commenced in its
territory but completed or consummated abroad.
ii. Objective territorial principle - State has jurisdiction
when any essential constituent element of a crime is
commenced in another state but completed or
consummated in its territory.
iii. The classical example is the firing of a gun across a
frontier causing a death on the territory of the
forum.

2. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
ii. NATIONALITY PRINCIPLE
1. determining jurisdiction by reference to the nationality of the
person committing the offence
a. state are permitted to exercise jurisdiction over its
“nationals” for crimes committed anywhere in the world.
b. The jurisdiction of course will not be exercised until the
national physically comes within the territory of his or her
home state.
c. Some countries claim jurisdiction on the basis of some
personal link, other than nationality, for instance, crimes
committed abroad by their ‘permanent residents’
iii. PROTECTIVE PRINCIPLE
1. determining jurisdiction by reference to the national interest
injured by the offence
2. a state can punish acts prejudicial to its security, integrity, or
national interest, irrespective of where those acts take place or by
whom they are committed. [i.e. without any territorial or
nationality linkage]
3. 19th Century: continental countries began to claim jurisdiction
over acts committed by foreigners abroad which threatened the
State.
4. Although there were opposition by other states, later the opposition
ceased.
5. E.g., the UK initially opposed this principle and the US has always
been claiming on this ground
a. Joyce v DPP - Joyce was charged with treason for having
made propaganda broadcasts to the UK from Germany for
the German Government. He argued that as he was a US
national, he owed no allegiance to the Crown and hence
could not be guilty of treason. The HL found that as the
accused was holder of a British passport (even though the
passport had been obtained by fraud), he owed the Crown
allegiance and was guilty of treason.
iv. UNIVERSALITY PRINCIPLE
1. determining jurisdiction by reference to the custody of the person
committing the offence
2. there are certain crimes which are so destructive of the
international order and are contrary to the interests of the
international community as a whole, that they are treated as delicta
jure gentium (crimes under international law).

3. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
3. generally accepted that all states are entitled to apprehend and
punish the perpetrators of crimes under international law regardless
of territorial or national link with them.
4. purpose of conceding universal jurisdiction is to ensure that no
such crime goes unpunished.
5. Crimes which are subject to the universality principle are very
limited in number.
6. The clearest, and non-controversial, illustration of such a crime is
‘piracy’; for centuries there has been a true, universal jurisdiction
over piracy.
7. Slavery too is generally regarded as being subject to universal
jurisdiction.
8. As far as war crimes and crimes against humanity are
concerned, reference is especially made to the 1949 Four Geneva
Conventions and the obligations of State parties to punish persons
guilty of these crimes. (Art. 49, Convention I).
9. Due to the almost universal adherence to these conventions (194
parties), it is generally accepted that the grave breach of these
conventions (war crimes and crimes against humanity) are subject
to universal jurisdiction.
10. The same is true with the crime of genocide (which was a sub-
category of crimes against humanity but has later been regarded as
a separate international crime).
a. Attorney-General of the Government of Israel v
Eichmann - Eichmann was the Head of the German
Gestapo and in charge of the policy that led to the
extermination of Jews in Europe.He was found in
Argentina in 1960 by Israeli agents and abducted to Israel.
There he was prosecuted for war crimes, genocide and
crimes against humanity. He was convicted and sentenced
to death. It was held by the court that: “The abhorrent
crimes …are not crimes under Israel law alone. These
crimes are grave offences against the law of nations itself
(delicta jure gentium). The jurisdiction to try crimes under
international law is universal.”
11. As far as ‘torture’ is concerned, there is the Torture Convention,
1984 (144 States parties).
12. In the Pinochet case, Lord Millett stated: “The systematic use of
torture on a large scale and as an instrument of State policy had

4. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
joined piracy, war crimes and crimes against peace as an
international crime of universal jurisdiction”.
13. Therefore the clear-cut cases of international crimes, which are
subject to universal jurisdiction, are genocide, war crimes, crimes
against humanity, torture, piracy, and slave-trading.
14. Other crimes of international concern, established by more recent
conventions, relating to hijacking of aircraft, sabotage,
terrorism, hostage-taking and drug-trafficking, raise questions
as to the legal basis of the alleged universal jurisdiction.
15. Such conventions create an obligation to prosecute or to extradite
the accused.
16. It is, however, difficult to accept that such treaties, which are
binding only among the parties to them, by themselves create true
universal jurisdiction in relation to non-parties.
v. PASSIVE PERSONALITY PRINCIPLE
1. determining jurisdiction by reference to the nationality of the
person injured by the offence.
2. If the victim of a crime is its national, a State can exercise
jurisdiction over a foreigner even though he committed it in a
foreign country.
3. This principle can be said as an opposite version of the nationality
principle (also known as active personality principle).
4. Mexico, Brazil and Italy claim criminal jurisdiction on the basis of
this principle.
a. Cutting Case - In this case, a court in Mexico assumed
criminal jurisdiction over an American citizen for the
publication of a defamatory statement against a Mexican
citizen in a Texas newspaper. The United States protested
against this. The US and the UK has consistently opposed
this principle in the past. In the US, however, it appears that
it has come to accept the passive personality principle in
respect of terrorist activities and similar serious crimes.
4) CONFLICT OF JURISDICTION
a. Two or more States may be entitled to exercise jurisdiction over the same person
in respect of the same event.
b. known as ‘concurrent jurisdiction’ and can give rise to jurisdictional disputes.
c. When more than one State has jurisdiction under international law, priority
depends solely upon ‘custody’.

5. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
5) EXTRADITION
a. States have to depend on the cooperation of the other States in order to obtain
surrender of suspected criminals or convicted criminals who are, or have fled,
abroad.
b. This form of international judicial assistance is called “extradition”.
c. Extradition, therefore, is the surrender by one state to another of an individual
accused of or convicted of an offence.
d. GENERAL PRINCIPLES OF EXTRADITION
i. Customary international law imposed no duty upon States to surrender
alleged offenders to another State.
ii. Therefore, the general rule is that there is no duty to extradite in the
absence of a treaty.
iii. The problem of a demand to surrender the accused in the absence of an
extradition treaty has recently arisen in the ‘Lockerbie Case’.
iv. Before an application for extradition is made through the diplomatic
channel, two conditions are required to be satisfied:
1. extraditable person; and
2. extraditable crime.
v. In respect of extraditable person, many States usually refuse the
extradition of their own nationals.
vi. The Principle of double criminality
1. Most States follow the principle that the act charged must be a
crime under the law of both the state of refuge and the requesting
state.
vii. The principle of speciality
1. the requesting State is under a duty not to punish the offender for
any other offence other than that for which he was extradited.
6) IMMUNITY FROM JURISDICTION
a. Although States can exercise jurisdiction over persons, things, and occurrences
within their territory, there are certain categories of persons and entities, which,
under international law, are immune from the jurisdiction of municipal courts.
b. three types of immunity
i. SOVEREIGN OR STATE IMMUNITY
1. There are several theories among which the widely accepted one is
that based on the “sovereign equality of States”.
2. The maxim says- Par in parem non habet imperium - “An equal
has no power over an equal”.
3. States are sovereign and they are equals.

6. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
4. Therefore, it is impossible for one sovereign State to exercise
authority (by means of its legal system) over another sovereign
State.
a. absolute immunity
i. According to this theory, Foreign States were
immune from the jurisdiction of domestic courts for
all the acts whatsoever without any exception.
ii. The Parlement Belge - A mail packet vessel
belonging to the Belgian King was held to be
entitled to complete immunity).
iii. Mighell v Sultan of Johor - Sultan of Johor was
held to be immune from the jurisdiction of British
courts in respect of an action for breach of promise
to marry.
b. restrictive immunity
i. According to the theory of restrictive immunity,
States can enjoy immunity from the jurisdiction of a
municipal court only in respect of their ‘sovereign
acts’ (acta jure imperi), not in respect of their
‘commercial acts’ (acta jure gestionis).
ii. Although some States still accept the principle of
absolute immunity, the principle of restrictive
immunity is today adopted by most States.
iii. State practice
iv. Common law countries: In the past, adhered to
absolute theory but later on have changed their
policy and applied restrictive theory.
v. Civil law countries: The restrictive theory has a
long history in most of the continental countries
although they have no specific legislation.
vi. Communist countries: Adhered to absolute theory,
but with the demise of Soviet Union, many have
changed to restrictive theory.
vii. International conventions: European Convention
on State Immunity 1972; the UNCLOS 1982; and,
the Convention on Jurisdictional Immunity of States
and Their Property 2004 are mainly based on the
doctrine of restrictive immunity.
viii. The theory of restrictive immunity is now an
established rule of customary international law.

7. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
c. head of state immunity (State officials immunity)
i. A number of distinctions must be made.
1. The distinction between a serving head of
State and a former head of State;
2. The distinction between acts done in a
private capacity and those done in a public
capacity;
3. Whether the act was an ordinary crime or
an international crime.
4. Both heads of State and heads of
government are treated as a ‘State’, which
enjoys immunity under international law.
5. The position of a head of State in terms of
immunity can be equated to that of a head of
government.
d. immunity of a serving head of state
i. Personal inviolability
1. Exemption of the sovereign from ‘arrest’ or
‘detention’
ii. Immunity from civil proceedings
1. A serving head of state can immune for his
official acts but not for his private acts.
iii. Immunity from criminal proceedings
1. A serving head of state enjoys absolute
immunity from criminal proceedings, in
respect of both acts performed in the course
of official functions and private acts.
a. Ghadaffi Case: Colonel Ghadaffi as
Head of State of Libya was immune
from jurisdiction in respect of
alleged complicity in acts of
terrorism leading to the destruction
of a civilian aircraft in 1999.
e. ministers other than the head of government
i. In the Arrest Warrant case, the ICJ stated that “A
Minister for Foreign affairs occupies a position such
that, like the Head of State or the Head of
Government, he or she is recognised under
international law as representative of the State
solely by virtue of his or her office”

8. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
ii. The consequence of such status was, on the facts
before the Court, to confer personal inviolability
and immunity from criminal jurisdiction.
f. immunity of a former head of state
i. A former head of State has no immunity in respect
of private acts committed while in office.
ii. Noreiga case, drugs offences committed by General
Noriega when head of Panama have been regarded
by the US courts as private acts for which no
immunity survives.
iii. However, it was assumed that a former head of state
could still be entitled to immunity for official acts
done while he was a Head of State
iv. R v Bow Stret Metropolitan Stipendiary Magistrate,
ex parte Pinochet (No. 3) - Pinochet, a former
President of Chile, was indicted by a Spanish judge
on charges of torture and conspiracy to torture.
While Pinochet was in a UK hospital for treatment,
the Spanish government requested the UK
government to extradite him to Spain under an
extradition treaty between the two countries. In
extradition proceedings in the UK, the issue arose
whether Pinochet was immune from the
proceedings as a former Head of State in respect of
actions undertaken while he was Head of State. The
HL held that Pinochet was not immune because
torture is a crime under international law.
ii. DIPLOMATIC (AND CONSULAR) IMMUNITY
1. ‘Diplomacy’: any means by which states establish mutual
relations, communicate with each other, or carry out political or
legal transactions, in each case through their authorised agents.
2. Normally diplomacy involves the exchange of permanent
diplomatic missions.
3. Nevertheless, diplomacy in a wider sense may also include the
categories of (1) special missions or ad hoc diplomacy, and (2) the
representatives of states at international conferences.
4. The rules of international law governing diplomatic relations were
the product of long-established State practice.

9. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
5. The law has now been codified to a considerable extent in the
Vienna Convention on Diplomatic Relations, 1961. (179 Parties to
the Vienna Convention; almost universal).
6. establishment of a diplomatic mission
a. A diplomatic mission usually include a ‘head of the
mission’ and the members of the mission.
b. Article 14: Heads of mission - three classes:
i. that of ambassadors or nuncios [a diplomatic
representative of the Pope having ambassadorial
status] accredited to Heads of State;
ii. that of envoys, ministers and internuncios [ranking
below a nuncios], accredited to Heads of
Government;
iii. that of charg`e d’affaires accredited to Ministers for
Foreign Affairs.
c. The staff of the mission divided into three categories
(Article 1):
i. The diplomatic staff, namely, members of the staff
of the mission having diplomatic rank, such as
counselors, diplomatic secretaries, or attachés.
ii. The administrative and technical staff, such as
clerical assistants and archivists.
iii. The service staff, who are in the domestic service of
the mission, such as drivers, cleaners and kitchen
staff.
d. persona non grata (unaceptable diplomat)
i. Article 9: The receiving State may at any time
declare the head of the mission or any member of
the diplomatic staff of the mission persona non
grata or that any other member of the staff of the
mission is not acceptable.
ii. The sending State has either to recall the person
concerned or terminate his functions with the
mission.
iii. This is a step which can be used as a sanction if
immunities are abused.
e. Inviolability
i. Inviolability can be defined as secureness from
violation, assault or trespass.
ii. The two main forms of inviolability are:

10. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
1. inviolability of the mission; and
2. inviolability of diplomatic agents.
iii. inviolability of the mission (article 22)
1. The premises of the mission shall be
inviolable. The agent of the receiving state
may not enter them, except with the consent
of the head of the mission.
2. The receiving state is under a special duty
…to protect the premises of the mission
against any intrusion or damage and to
prevent any disturbance of the peace of the
mission….
3. The premises of the mission…and the
means of transport of the mission shall be
immune from search, requisition, attachment
or execution.
iv. inviolability of diplomatic agents (article 29)
1. United States Diplomatic and Consular
Staff in Tehran case - “The person of a
diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or
detention. The receiving state shall treat him
with due respect and shall take all
appropriate steps to prevent any attack on
his person, freedom or dignity”.
f. Immunity from local jurisdiction
i. Diplomatic agents are immune from the jurisdiction
of local courts.
1. They are immune from:
a. criminal,
i. Article 31 (1): “A diplomatic
agent shall be immune from
the criminal jurisdiction of
the receiving State…”.
ii. Immunity from criminal
jurisdiction is absolute and a
diplomatic agent cannot
under any circumstances be
tried or punished by the local

11. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
criminal courts of the
receiving state.
iii. This does not mean that he
must have a right to do what
he likes. In fact, under Art.
41, he is under an obligation
to respect the laws of the
receiving state.
iv. Moreover, although exempt
from the jurisdiction of the
receiving state, a diplomat
remains subject to the
jurisdiction of its own state.
v. Art. 31 (4): “The immunity
of a diplomatic agent from
the jurisdiction of the
receiving state does not
exempt him from the
jurisdiction of the sending
state”.
vi. In Dickinson v Del Solar, it
was held that diplomatic
privilege does not import
immunity from legal liability,
but only exemption from
local jurisdiction.
b. civil, and administrative
jurisdiction
i. In respect of civil and
administrative jurisdiction,
diplomatic agents cannot
enjoy absolute immunity.
ii. Their immunity is subject to
three exceptions mentioned
in Article 31 (1) of the
Vienna Convention: “A
diplomatic agent .… shall
also enjoy immunity from its
civil and administrative

12. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
jurisdiction, except in the
case of:
(a) a real action relating to private immovable property situated in the territory of the receiving
state, unless he holds it on behalf of the sending state for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved …as a private
person and not on behalf of the sending state;
(c) an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions.
c. WAIVER OF IMMUNITY
Article 32(1): It is an established practice that the immunity from jurisdiction of diplomatic
agents may be waived by the sending state.
Art. 32 (2): Waiver must always be express.
Art. 32 (3):The initiation of proceedings by a diplomatic agent shall preclude him from invoking
immunity from jurisdiction…
d PERSONS ENTITLED TO DIPLOMATIC IMMUNITY
Articles 29 to 36: the beneficiary of the immunities is mentioned as ‘a diplomatic agent”.
Art. 1(e): A ‘diplomatic agent’ is the head of the mission or a member of the diplomatic staff of
the mission.
Art. 1(d): The ‘members of the diplomatic staff’ are the members of the staff of the mission
having ‘diplomatic rank’.
The term ‘diplomatic agent’, therefore, includes the head of the mission (the Ambassador, the
Envoy or Minister, or the Charg`e d’ Affaires, as the case may be), and the staff of the mission
having diplomatic rank: the Counselors, the Secretaries (the First, the Second and the Third
Secretaries), and the Attach`e officers (Military Attach`e, Cultural Attach`e, etc.).
The extent of the privileges and immunities enjoyed by the other personnel of a diplomatic
mission varies according to the category to which the person belongs. Article 37:
1. The members of the family of a diplomatic agent forming part of his household shall, if they
are not nationals of the receiving state, enjoy the privileges and immunities specified in Arts. 29
to 36.
2. Members of the administrative and technical staff of the mission (together with families),
shall, if they are not nationals of or permanent resident in the receiving state, enjoy the privileges

13. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
and immunities specified in Arts. 29 to 35, except that the immunity from civil and
administrative jurisdiction of the receiving state shall not extend to acts performed outside the
course of their duties….
3. Members of the service staff of the mission who are not nationals of or permanent resident in
the receiving state shall enjoy immunity in respect of acts performed in the course of their duties,
(and) exemption from dues and taxes on the emoluments they receive by reason of their
employment…
4. Private servants of members of the mission shall, if they are not nationals of or permanent
resident in the receiving state, be exempt from dues and taxes on the emoluments they receive by
reason of their employment…
Empson v Smith - The defendant was an administrative officer with the Canadian High
Commission. The plaintiff sued for breach of a tenancy agreement and the defendant claimed
diplomatic immunity. The Court of Appeal held that he was not entitled to immunity because as
a member of the administrative and technical staff of the mission his immunity from civil
jurisdiction does not extend to acts performed outside the course of his official duties.
If a member of the staff of the mission is a national of or permanent resident in the receiving
State, he is entitled to less privileges and immunities.
Article 38 of the Vienna Convention provides:
1. A diplomatic agent who is a national of or permanent resident in that State shall enjoy only
immunity from jurisdiction and inviolability in respect of official acts performed in the exercise
of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or
permanent resident in the receiving State shall enjoy privileges and immunities only to the extent
admitted by the receiving State.
DURATION OF IMMUNITY
Article 39 (2): “When the functions of a person enjoying privileges and immunities shall
normally cease at the moment when he leaves the country or on expiry of a reasonable period in
which to do so”.
In case of ‘official acts’, the immunity is permanent.
In respect of ‘private acts’, the immunity is contingent and supplementary as it ceases when the
individual concerned leaves his post.

14. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
iii. IMMUNITY OF INTERNATIONAL ORGANIZATIONS
1. As international organisations are vested by States with important
functions, they require privileges and immunities for the effective
exercise of their functions.
2. There is a major difference between diplomatic immunity and
immunity of IOs.
3. The diplomat who is immune from the jurisdiction of the receiving
state is under the jurisdiction of his own State whereas no such
jurisdiction exists in case of the immunity of IOs.
4. The UN is the most important international organization of the
present day and any study on immunity of international
organizations should start with the privileges and immunity of the
UN.
5. Article 104 of the Charter:
“The Organisation shall enjoy in the territory of each of its
Members such legal capacity as may be necessary for the exercise
of its functions and the fulfilment of its purposes.”
6. Article 105 of the Charter:
“1. The Organisation shall enjoy in the territory of each of its
Members such privileges and immunities as are necessary for the
fulfilment of its purposes.
2. Representatives of the Members of the UN and officials of the
Organisation shall similarly enjoy such privileges and immunities
as are necessary for the independent exercise of their functions.
3. The GA may make recommendations with a view to
determining the details of the application of this Article or may
propose conventions to the Members of the UN for this purpose”.
7. Article 105(3) of the UN Charter, the GA adopted the
‘Convention on the Privileges and Immunities of the United
Nations 1946’ & ‘Convention on the Privileges and Immunities of
the Specialised Agencies1947’.
8. According to the former, the UN has complete immunity from all
legal process and its premises, assets, archives, and documents are
inviolable.
9. The Secretary-General and the Assistant Secretaries-General of the
UN can enjoy the same privileges and immunities as the head of a
diplomatic mission does.
10. Other officials of the UN have only limited immunities, such as
immunity from legal process in respect of their official acts.

15. ILYANA ISKANDAR – INTERNATIONAL LAW NOTES AS AT 2016
11. In respect of experts performing missions for the UN, the
Convention provides that: “Experts performing missions for the
UN shall immune from legal process of every kind, in respect of
words spoken or written and acts done by them in the course of the
performance of their mission”.
12. These conventions are of a multilateral character and thus it is also
necessary to conclude a special treaty with the host State in whose
territory the headquarters of the organisation is situated.
13. The ‘Headquarters Agreements’ between the UN and the US, as
well as the UN and Switzerland are good examples.